Illinois AG and Chicago State's Attorney Refuse to Defend Gay Marriage Ban, Citing State Constitution

By: Maria Hibbard

What does defending the constitution look like in practice? Two Illinois attorneys have refused to defend the state’s gay marriage ban because they believe the ban violates the equal protection clause of the state’s constitution–therefore, as they argue, they are not bound by law to defend it. This is not the first time government attorneys have  wrestled with the issue of whether to enforce what they believe is an unenforceable law; last year, the Obama administration refused to defend the defense of marriage act, and an attorney general in Nebraska has refused to defend the state’s abortion screening law. Will the Illinois prosecutors set a trend? As the Associated Press reports:

The action was taken on behalf of the 25 couples, some of them from outside Cook County, but all of whom had applied for marriage licenses there and been denied. The suit closely followed the formal endorsement of same-sex marriage by President Barack Obama. Democratic Illinois Gov. Pat Quinn also recently stepped up his public support, though legislative moves to legalize gay marriage remain stalled in the General Assembly.

Alvarez said it’s her job to represent Orr — and they both agreed with the plaintiffs.

Peter Breen, executive director of the Thomas More Society, a public interest law firm that opposes gay marriage, said the group “will be seeking relief from the court,” though he didn’t say exactly what that would be. Some experts have suggested the society could seek standing to defend the ban, though that’s considered a long shot.

“You can’t just say you feel it’s unconstitutional,” said Breen. “This … puts people of the state of Illinois in a difficult place because their elected representatives are not defending their interests. If there is no argument or disagreement, then you’d really have a hollow judgment.”

David Erickson, a former prosecutor and state appellate judge who now teaches at IIT Chicago-Kent College of Law, said it also potentially puts a private firm in the position of being demonized for stepping forward to defend a state law. Erickson believes the law is unconstitutional but said Breen has a point.

“Show me where it says any elected official, especially a prosecutor, can say, ‘I won’t defend law passed by a legislative body that is my coequal,'” Erickson said. “Only one body can say it’s unconstitutional and that’s the (Illinois) Supreme Court.”

But fellow Kent College professor Douglas Godfrey said Alvarez and Madigan have a professional responsibility to ensure claims have merit, whether they’re filing a lawsuit or defending one, and “in essence … said we don’t think Illinois’ law will stand muster.”

John Knight, director of the Lesbian, Gay, Bisexual, Transgender Project of the ACLU of Illinois, said plaintiffs will ask the judge to rule on Illinois’ law based on their arguments and those of Madigan and Alvarez.

Lambda Legal’s marriage project director, Camilla Taylor, said she never has had a case in which the defendants agreed with her.

It “reflects the fact that we’re at a tipping point now … (because) our government finds these laws indefensible,” she said. “It comes at a time when a form of discrimination against a class of people in our society is so shameful and reprehensible that it’s incapable of defense.”